BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
A screening mechanism for foreign direct investment has been in force in Belgium since 1 July 2023 (see 9.1 Legislation and Filing Requirements ). 4.7 Special Consideration for Joint Ventures Full-function JVs are assessed under the substantive test set out in 4.1 Substantive Test . Possible co-ordi - nation between JV parents will be assessed under the prohibition of anti-competitive agreements, set out in Article IV.1 of the CEL and Article 101 of the TFEU (Article IV.9 (5) CEL). 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The BCA must declare concentrations that would sig - nificantly impede effective competition in the Belgian market, or in a substantial part of it, inadmissible (Arti - cle IV.9 (4) CEL). Since its establishment as an independent competi - tion authority in 2013, the BCA has not issued a single decision prohibiting a concentration. However, in Ter Beke - Pluma N . V ./ Compofrio Food Group Netherlands Holding B . V . and Imperial Meat Products VOF , the transaction was withdrawn in anticipation of such an outcome. Notified in May 2022, the proposed acqui - sition by Ter Beke (now What’s Cooking?) of Imperial Meat Products raised serious competition concerns in several processed meat markets. Following the opening of a Phase II investigation and two succes - sive recommendations by the Prosecutor General to block the transaction due to the absence of remedies, Ter Beke withdrew its bid in June 2023. As a result, the BCA closed its review without adopting a formal prohibition decision (BCA, press release no 23/2023 of 2 June 2023). 5.2 Parties’ Ability to Negotiate Remedies The parties may propose remedies to address anti- competitive concerns raised by the BCA. Unlike the Commission, which tends to favour structural rem - edies, the BCA has regularly accepted and imposed both structural and behavioural remedies.
Nevertheless, in an interview published in Concurrenc - es in 2023, the BCA’s Prosecutor General said that he abides by the long-standing priority given to structural remedies at EU level, but that this “doesn’t mean that behavioural or access remedies should be excluded per se; they make sense in certain cases, when their workability is backed by market realities/feedback, as was the case in the DPG/Rossel/RTL Belgium trans - action” (see Damien Gerard, Isabel Rooms, ‘Damien Gerard (Belgian Competition Authority): For a rigorous and effective competition policy anchored in market realities’, Concurrences 2023, No 3, Art No 113384). Examples of structural remedies from the BCA’s prac - tice include divestitures (eg, Kinepolis / Utopolis , Deci - sion No 2016-I/O-12) and granting access to essential infrastructure on fair, reasonable and non-discrimina - tory (FRAND) terms (eg, Telenet / De Vijver Media , Deci - sion No 2019-C/C-16). An example of a behavioural remedy is the prohibition on bundling several services or products in conglomerate mergers (eg, Bpost / APM , Decision No 2016-C/C-32). 5.3 Legal Standard The Markets Court (Brussels Court of Appeal) held that: “[r]emedies must be complete, effective and veri - fiable. This means they fully and effectively remove the serious doubts about the significant impediment to competition, and thus the competition concerns, and that this can be verified” (free translation of citation taken from judgment of 11 March 2015, VAB , VAB and Rijschool Sanderus v BMA , point 77). In other words, remedies must eliminate any serious doubts about a significant impediment to competition in a manner that is complete, effective and verifiable. 5.4 Negotiating Remedies With Authorities According to Article IV.66 (2) of the CEL, the BCA may only impose remedies in its decision if those remedies have been offered by the parties. This means that the authorities cannot unilaterally impose remedies that have not been agreed upon. Remedies can be offered as early as during the infor - mal pre-notification discussions.
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